Neha Khanna vs M/S Tybros Infratech Pvt Ltd

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH: NEW DELHI Company Appeal (AT)(Insolvency) No. 762 of 2021 [Arising out of Order dated 06th July, 2021 passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench, Allahabad) in C.P. (IB) No. 227/ALD/2019] IN THE MATTER OF: 1. Neha Khanna W/o Mr. Dinesh Khanna 6A/40, WEA, Karol Bagh New Delhi - 110005 ...Appellant

2. Mr. Dinesh Khanna 6A/40, WEA, Karol Bagh New Delhi - 110005 ...Proforma Appellant Versus M/s Tybros Infratech Pvt. Ltd. Village Micholi, P.O. Seem Tehsil Bhikyasen Almora - 263680 Vivek.tyagi@tybrosindia.com Also at: 5/54, 3rd Floor Main Shankar Road Old Rajinder Nagar New Delhi - 110060 ...Respondent Present: For Appellant : Mr. Akshat Bajpai and Mr. Shobhit Trehan, Advocates. For Respondent : Mr. Rishabh Jain, Advocate for Corporate Debtor.

(03rd March, 2023)

KANTHI NARAHARI, MEMBER (TECHNICAL) Preamble:

The Present Appeal is filed under Section 61 of the Insolvency &

Bankruptcy Code, 2016 (for short 'I&B Code") against the Order dated 06th

July, 2021 passed by the Adjudicating Authority (National Company Law Company Appeal (AT) (Ins.) No. 762 of 2021 1 of 9 Tribunal, Division Bench, Allahabad) in C.P. (IB) No. 227/ALD/2019,

whereby the Adjudicating Authority rejected the Application filed by the

Appellant.

Brief Facts:

Appellant's Submissions:

2. Aggrieved by the aforesaid order, the Appellant preferred the present

Appeal. The Learned Counsel appearing for the Appellant submitted that the

Appellant purchased two cottages at the Holiday Resort developed by the

Respondent in the name & style of "EON Resort" situated at Midway Corbett

Ranikhet, Near Maa Bhonadevi Temple, Ghatti - Basot Road, Village Jihad,

District - Almora for a total consideration of Rs.76,33,000/- for each cottage.

Accordingly, two separate Agreement to Sell dated 15.04.2016 were entered

into and the Appellant paid a sum of Rs. 22,55,000/- inclusive service tax of

Rs. 78,814/- at the time of signing the agreement. The balance of

Rs.54,61,814/- was to be paid at the time of possession of the cottages. The

Appellant paid a total sum of Rs. 45,00,000/- towards purchase two cottages

at the time of executing the agreement dated 15.04.2016.

3. It is submitted that due to non-delivery of cottages within stipulated

time, the Appellant approached the Respondent for full refund of already

paid amount which was agreed by the Respondent and on its solicitations

the Appellant paid an additional amount of Rs. 5,00,000/- which was

subsumed into earlier paid amount and a loan agreement was entered into

on 20.11.2018 for full amount of Rs. 50,00,000/- to be repaid to the

Appellant within 3 to 6 months alongwith interest @ 18%. It is submitted

Company Appeal (AT) (Ins.) No. 762 of 2021 2 of 9 that two cancellation agreements were signed by the both the parties

cancelling the Agreement to Sell dated 15.04.2016.

4. It is submitted that the having no other alternate the Appellant filed

Section 7 Application before the Adjudicating Authority and the Respondent

filed a Reply to the said Application on 19.08.2019 whereby it admitted all

the concerns raised by the Appellant. However, the Respondent filed 2nd

Reply dated 17.01.2020 without the leave of the Tribunal violating the NCLT

Rules and in the 2nd Reply, the Respondent made contradictory and false

statement made on affidavit by denying the existence of any loan due to the

Appellant. However, in the Respondent / Corporate Debtor admitted the due

amount in its 1st Reply affidavit.

5. It is submitted that by virtue of two cancellation agreements dated

20.11.2018 the allotment of two cottages provided through agreement dated

15.04.2016 and assured the return agreement dated 22.07.2016, providing

assured return @ 16% per annum came to an end thereby changing the

status of the Appellant from investor to that of lender.

6. It is submitted that the Learned Adjudicating Authority rejected the

application by holding that the Appellant is a homebuyer and do not fall

under the category of lender, who lent the money to the Corporate Debtor on

the understanding that the amount which was paid to be treated as loan

amount and not as homebuyer.

7. In view of the reasons as stated above the Learned Counsel has prayed

this Bench to allow the Appeal by setting aside the impugned order.

Company Appeal (AT) (Ins.) No. 762 of 2021 3 of 9 Respondent's Submissions:

8. Learned Counsel appearing for the Respondent submitted that the

order passed by the Learned Adjudicating Authority need no interference for

the reason that the Appellant being a homebuyer has not met the mandatory

threshold limit i.e. 10% allottees of the real estate project should jointly be

filed the petition under Section 7(1) of the I&B Code, 2016.

9. It is submitted that the Appellant entered into two separate

agreements to sell with the Respondent dated 15.04.2016 for two cottages in

Phase-II at the Holiday Resort being developed by the Corporate Debtor. In

the aforesaid project 97 cottages have been allotted including the Appellants

out of 124 cottages. Therefore, the Appellants have not met the requisite

qualification for filing application under Section 7(1) of the I&B Code, 2016.

10. The Appellants have entered to various lucrative agreement such as

Agreement to Sell and Assured Return Agreement with the Corporate Debtor,

therefore, the Appellants are speculative investors and not Financial Creditor

within the meaning of Section 5(8) of the I&B Code, 2016. As per Clause (3)

of Agreement to Sell and Assured Return Agreement, the Corporate Debtor

has agreed the Appellant to pay the Assured Return as per negotiated

amount. The Assured Return would be 16% of BSP received or Rs. 28,949/-

per month for a period of 30 months from the date of receipt of earnest

money.

11. As per Clause (4) of Agreement to Sell, the Appellant will lease back a

property immediately at the time of possession to the Corporate Debtor and

the Corporate Debtor shall pay the assured monthly rental at the rate given

Company Appeal (AT) (Ins.) No. 762 of 2021 4 of 9 in Annexure-A of the Agreement to Sell. Further, as per Clause (14) of

Agreement to Sell, the Corporate Debtor has given an option to buy back the

property from the Appellant under different rates after the expiry of different

period.

12. The Learned Counsel further submitted that the case of the Appellant's

is in the nature of speculative investors and covered by judgment of this

Tribunal in the matter of Anikit Goyal vs. Sunita Agarwal (2021) 131

taxmann.com 219(NCLAT) para 18. Also relied upon the judgment of this

Tribunal in the matter of Nidhi Rekhan Vs. Samyak Projects Pvt. Ltd. (2022)

138 Taxmann.com 236 NCLAT para 17.

13. It is submitted that the Appellants at the time of signing the agreement

dated 15.04.2016 paid a consideration of Rs. 22,50,000/- for each cottage

totalling to a sum of Rs. 45,00,000/- for two cottages. Further, the

Appellants themselves did not want to complete the sale and has not shown

the readiness and willingness in getting the possession and transfer of the

said cottages. The Appellants are due payment of balance sale consideration

of Rs.1,07,66,000/- for both cottages. The Appellants instead of paying the

balance due amount, came forward with a proposal that they wanted to sell

their rights to a buyer, which has been refused by the Company to void any

confusion. Further, the Appellants proposed the post-dated cheques is to be

given by the Corporate Debtor as a Security and they will bring the buyer

who will pay the current market rates of the cottages to the Corporate Debtor

and the amount given by the new buyer will be deposited in the Corporate

Debtor bank account and after securing the balance sale consideration of

Company Appeal (AT) (Ins.) No. 762 of 2021 5 of 9 the Appellant, the Corporate Debtor will return the amount paid by the

Appellants. It is submitted that the Appellants got executed the loan

agreement with the aforesaid assurance that they will deposit

Rs.45,00,000/- through new buyer and get their allotment cancelled.

However, the Appellants have not come forward and has not paid

Rs.45,00,000/- to the Corporate Debtor and the cheques given by the

Appellant were dishonoured.

14. It is submitted that the cancellation agreements dated 20.11.2018, it

is specifically stated that both the agreements are false fabricated and were

never executed by any of the person of the Corporate Debtor.

15. In view of the reasons as stated above the Learned Counsel has prayed

this Bench to dismiss the Appeal as devoid of any merit.

Analysis / Appraisal:

16. Heard the Learned Counsel appeared for the respective parties

perused the pleadings, documents relied upon by them. After analysing the

pleadings, the moot point for consideration is whether the Appellant has

made out any case to be interfered with, the order passed by the Adjudicating

Authority.

17. The Appellant filed the Application under Section 7 of I&B Code, 2016

before the Adjudicating Authority praying for Initiation of Corporate

Insolvency Resolution Process against the Respondent / Corporate Debtor

on the grounds of inability to pay its financial debt. Part-IV of Form-1 of the

Application filed before the Adjudicating Authority in Column-1, the amount

of debt disbursed shown as Rs.50,00,000/- and in the very same column it

Company Appeal (AT) (Ins.) No. 762 of 2021 6 of 9 has been mentioned that "in 2016, the Applicant and her husband

purchased two cottages at the Holiday Resort being developed by the

Corporate Debtor in the name & style of "EON Resort" situated at Midway

Corbett Ranikhet, Near Maa Bhonadevi Temple, Ghatti - Basot Road, Village

Jihad, District - Almora for a total consideration of Rs. 76,33,000/- for each

cottage".

18. Further, in the very same column, it has been stated that the two

separate Agreements to Sell dated 15.04.2016 were executed between the

Corporate Debtor and the Appellant, and in pursuance thereof a sum of

Rs.45,00,000/- for the two cottages were paid. In Column-2, the Appellant

claimed an amount of Rs.52,70,000/-, however, the said amount claimed to

be under cancellation agreement dated 20.11.2018.

19. We have perused the Agreement to Sell dated 15.04.2016 from the

preamble, it is clear that the Corporate Debtor in the capacity as seller and

developer and the Appellant being the purchaser entered the said agreement.

The covenant of the agreement emphasises that the project / cottages will

take approximately 30 months to complete and the same will be delivered

after completion of construction. The total consideration of each cottage

mentioned as Rs. 76,33,000. /-. In Clause 14 of the Agreement to Sell, the

Corporate Debtor / Seller has given a buy back option to the Appellant/

Buyer for the said property as per the terms mentioned there at. The

Appellant and the Corporate Debtor also entered Assured Return Agreement

dated 22.07.2016, whereby it is stated that the Corporate Debtor will pay @

16% per annum of BSP received or Rs. 28,949/- as Assured Return rate for

Company Appeal (AT) (Ins.) No. 762 of 2021 7 of 9 a total period of 30 months or till possession whichever is later. There is no

doubt that the Appellant had purchased two cottages and to that effect

entered Agreement to Sell and also entered an agreement for Assured Return

dated 22.07.2016. From the perusal of the said document, it is crystal clear

that the Appellant is a homebuyer and paid an amount of Rs.45,00,000/-

pursuant to the agreement and terms & conditions as mentioned there at.

20. The bone of contention of the Appellant is that the Appellant cancelled

the Agreement to Sell by a Cancellation Agreement dated 20.11.2018. Per-

contra the Respondent / Corporate Debtor in its Reply Affidavit specifically

stated that the said Cancellation Agreement was not signed by the Corporate

Debtor nor any of its authorised person / representative on behalf of the

Corporate Debtor, therefore, the said Cancellation Agreement is invalid in

the eye of law. From the perusal of the said Cancellation Agreement dated

20.11.2018 annexed as Annexure A-11 at pages 152 to 155, we find that the

only signature of the buyer affixed on each page of the said document,

however, there is no signature affixed by the Corporate Debtor and there are

no signatures of the witnesses. Therefore, this Tribunal reluctant to decide

its authenticity and validity.

21. The Adjudicating Authority rejected the Application by observing that

the Appellant being single homebuyer cannot maintain the petition for the

reason that the minimum threshold for Financial Creditors in the case of

homebuyers as per Section 7(1) proviso as amended by act one of 2020 which

read as under:

"Provided further that for Financial Creditors, who are allottees under a real estate project, an application for initiating Company Appeal (AT) (Ins.) No. 762 of 2021 8 of 9 Corporate Insolvency Resolution Process against the Corporate Debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten percent of the total number of such allottees under the same real estate project, whichever is less."

22. The Hon'ble Supreme Court in the matter of Manish Kumar Vs. Union

of India & Anr. (W.P. (C) No. 26 of 2020), whereby the Hon'ble Supreme

Court upheld the above amendment and therefore, the Adjudicating

Authority need to follow the provision of law scrupulously while entertaining

the petitions of this nature.

23. As stated supra, it is unequivocal that the Appellant is a homebuyer

and there is no such documentary evidence to establish that the Appellant

is a Financial Creditor, who lent the money to the Corporate Debtor within

the meaning of Section 5(7) of the I&B Code, 2016.

Conclusion:

24. Having considered the rival submissions, this Tribunal comes to an

irresistible and inescapable conclusion that the order passed by the

Adjudicating Authority dated 06.07.2021 need no interference.

25. Resultantly, the Appeal sans merit and the same is liable to be

dismissed. Accordingly, the Appeal is dismissed. No orders as to cost.

[Justice Anant Bijay Singh] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical) pks

Company Appeal (AT) (Ins.) No. 762 of 2021 9 of 9